Cho High Court Decision 2009J3110 ( November 18, 2009)

Whether it is a processed tax invoice received from data trade without real transactions

It is reasonable to view that the representative of the plaintiff received a processed tax invoice without real transactions in light of the fact that he/she filed a complaint against the prosecutor's office due to the suspicion of

The contents of the decision shall be the same as attached.

1. The plaintiff's claims are all dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 28,686,90 on July 1, 2008 against the Plaintiff on July 1, 2008 (which appears to be a clerical error as of July 10, 2008) against the Plaintiff is revoked (this case is about a legal entity, and the cancellation of the taxation against a specific individual is not the purport of the claim).

1. Details of disposition;

A. The Plaintiff, a corporation engaged in the business of manufacturing printed packing materials, etc., received three copies of purchase tax invoices (hereinafter referred to as “instant tax invoices”) in the total amount of the supply price for the first term portion of 92,846,000 from △△△, a corporation (hereinafter referred to as “Seoul Special Metropolitan City”) and deducted the input tax amount from the output tax amount in 2006, and filed a return on the tax base and tax amount of corporate tax for 2006, by including the purchase amount of the said purchase tax invoices in deductible expenses.

B. The Defendant, on the ground that the instant tax invoice is a tax invoice for processing that is not a real transaction, deducted the input tax amount and excluded the purchase amount from deductible expenses. On July 1, 2008, the Defendant revised and notified the Plaintiff of KRW 13,110,650 of value-added tax for the first period of July 1, 2006, KRW 17,888,050 of corporate tax for the year 2006, and KRW 28,686,990 of Class A earned income for the year 206 (hereinafter “instant disposition”).

C. On August 3, 2009, the Plaintiff filed an objection on October 6, 2008, and filed an appeal with the Tax Tribunal on August 3, 2009, but was dismissed on November 17, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, 9 (including each number), the purport of the whole pleadings

2. Necessity for judgment on the merits;

Although the Plaintiff could have filed the instant lawsuit at the expiration of 90 days after the receipt of the written decision on tax appeals, it is not clear whether the written decision on tax appeals was lawfully delivered on November 23, 2009 to the Plaintiff, who appears to have been in the status of closure of business (where clear evidence exists, the instant lawsuit shall be dismissed), and the merits shall be determined.

3. Whether the dispositions of the instant case are legal.

A. The plaintiff's assertion

The Plaintiff entered into an actual transaction with △△△, and paid the price. Therefore, the instant disposition based on the premise that the instant tax invoice is a processing tax invoice is unlawful.

B. Key statute

It is as shown in the attached Form.

(c) Fact of recognition;

1) As a result, the Defendant conducted a tax investigation with respect to △△△△ from May 31, 2007 to September 30, 2007, and confirmed that the said company issued a tax invoice equivalent to KRW 2,046,00,000 without any real transaction during the taxable period from May 31, 2007 to September 1, 2006, and filed a complaint against △△, the representative director of △△△△ and the former representative director of △△△△△, for the suspicion of violating the Punishment of Tax Evaders Act. The details of the accusation include transactions with the Plaintiff related to the instant tax invoice.

2) Although the Defendant demanded the Plaintiff to submit materials to confirm the actual transaction with △△△△, the Plaintiff did not submit any such materials.

3) Based on the date of issuance and amount of the instant tax invoice and the fact-finding confirmation (Evidence A(5) written by the PublicCC, the Plaintiff claimed that the Plaintiff paid the price to △△△△△ in the bank account in his official name and the date of payment are as follows.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 4, 5, Eul evidence Nos. 3 and 5 (including paper numbers), the purport of the whole pleadings

D. Determination

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be imposed on the tax authority. However, if it is revealed that the facts of taxation requirement are presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the pertinent tax disposition was unlawful disposition, unless the other party proves that the pertinent facts in question cannot be eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002).

The following circumstances revealed by the above facts and the following: ① the date of payment and the amount claimed by the Plaintiff and the date and amount of issuance of the tax invoice of this case are inconsistent; ② the Plaintiff asserts that the Plaintiff transferred the transaction amount to △△△△△△△△△△△△, etc. in addition to the account in the name of △△, in addition to the △△△ in this court, using the account in the name of △△, the Plaintiff did not specify the amount of the tax invoice of this case in accordance with the rule of experience; ③ publicCC only worked in IMT during the period from 2001 to 2007, and it did not have worked in the △△△△△△, the representative of the Plaintiff was the actual representative of the △△△△△, and the Plaintiff was accused to the prosecution with the suspicion of issuing the processed tax invoice of this case; and ② there was no other evidence to prove that the Plaintiff was not able to submit any data to obtain the above contradictory points, and there is no other evidence to reverse the tax invoice of this case in light of the empirical rule.

Therefore, the supply value under the tax invoice of this case cannot be deducted from the Plaintiff’s input tax amount for the first time in 2006, and can not be included in the deductible expenses in calculating the tax base for corporate tax in 2006, barring special circumstances. Accordingly, the Defendant disposed of the representative bonus equivalent to the value (whether to specify an individual to whom income belongs is not the issue of this case, but must be determined in other procedures). The Plaintiff’s assertion is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.